The District Court of Appeal of the State of Florida (the “Appeals Court”) recently affirmed the trial court’s determination that a doctor’s business owner insurer was not obligated to indemnify the doctor for a wrongful death suit that resulted, in part, from the mis-filing of laboratory results by the doctor’s assistant, although it did have a duty to defend. The Estate of Steven Adam Tinervin v. Nationwide Mutual Insurance Company, No. 4D08-2151 (Florida District Court of Appeal, Fourth District, November 25, 2009). Click here for a copy of the court’s opinion.

The insured, a pediatrician, employed his wife as his only assistant. Her duties included the filing of lab reports in patient’s charts and providing them to the doctor to review. One of the insured’s patients had outside lab work done. Although the lab work was sent to the insured’s office, he claimed that the first time that he saw the results of the lab work was three months later. The insured opined that if he had seen the report earlier, he would have taken different actions in the patient’s treatment. The patient died the next month.

After being sued for wrongful death by the estate of the deceased patient, the insured sought coverage under his business owner’s policy. The business owner’s policy covered “those sums that the insured [became] legally obligated to pay as damages because of ‘bodily injury.’” Both the pediatrician and his assistant were insureds under the policy. The policy, however, contained an exclusion for bodily injury due to rendering or failure to render professional services. Accordingly, the insurer denied coverage pursuant to the professional services exclusion.

After the insureds settled the underlying wrongful death suit and assigned their claims against the insurer to the decedent’s estate, the estate brought suit against the insurer. The trial court conducted a non-jury trial and determined that the insurer had a duty to defend the wrongful death claims, but that there was no duty to indemnify due to the professional services exclusion.

The Appeals Court held that the policy language was unambiguous and “clearly exclude[d] coverage for claims ‘arising out of’ the providing or failing to provide professional services and claims ‘due to’ the rendering or failing to render any professional service.” The Appeals Court noted that in determining whether an act results from a professional service, the court must focus on the particular act in question, rather than the character of the individual who performed the act. The Appeals Court noted that even if an individual is not a professional, certain duties, when delegated to that individual, bring him or her within the definition of professional. Further, it agreed with a finding that the employee was a medical assistant as defined by Florida statute, and her duties included rendering of professional services. Accordingly, because the assistant’s duties were an “intricate part” of the medical services provided by the doctor, the Appeals Court agreed that the professional services exclusion applied and the insurer was not obligated to indemnify the insured.

The Appeals Court, however, also affirmed the trial court’s determination that the insurer was obligated to defend the insured. The underlying complaint asserted a “non-professional” negligence claim against the assistant for “clerical mistakes” and general negligence in the performance of “her non-professional office duties” and it was only after “the facts were flushed out in discovery” that it was found that there was no duty to indemnify. Accordingly, the Appeals Court affirmed that the insurer was obligated to defend the insureds.